Sanborn v. Sanborn

• Decision Date: 31 August 1983
• Docket Number: No. 82-390,82-390
• Citation: 465 A.2d 888,123 N.H. 740
• Parties: Joyce SANBORN v. Theodore SANBORN.
• Court: New Hampshire Supreme Court

Page 888

465 A.2d 888

123 N.H. 740

Joyce SANBORN v. Theodore SANBORN.

No. 82-390.

Supreme Court of New Hampshire.

Aug. 31, 1983.

Kahn, Brown, Bruno & Durmer, Manchester (George C. Bruno, Manchester, on the brief and orally), for plaintiff.

Karelitz, Cohen & White, Haverhill, Mass., and Edward E. Williams, Exeter (Robert J. White, Haverhill, on brief), for defendant.

DOUGLAS, Justice.

This case involves an appeal from a superior court order denying the plaintiff's motion to "clarify" a divorce decree awarding joint legal custody of the parties' children and granting the defendant certain contested visitation rights. The questions presented by this appeal are: (1) whether the standard for modifying physical custody of children is applicable to a modification of legal custody; and (2) whether the visitation provisions of the decree established a preference for the defendant's religion over that of the plaintiff in violation of the establishment clause of the United States Constitution. We affirm the superior court's award of joint legal custody, vacate the visitation provisions, and remand the case for further proceedings in light of this opinion.

The plaintiff, Joyce Sanborn, and the defendant, Theodore Sanborn, were married in November 1970 in a Methodist ceremony in Methuen, Massachusetts. Two years later, the parties moved to New Hampshire where they raised their two children, Tracy and Theodore, Jr., who were eight and four years old, respectively, at the time of this divorce. When the parties were married, the plaintiff was a member of the Methodist Church; the defendant converted to that religion in 1979, although he admits to being a "very poor attendant."

The differences leading to the parties' divorce in 1981 first arose when the plaintiff became interested in, and was eventually "baptized" into, a religious sect called the World Wide Church of God. The Church's tenets include celebration of the Sabbath on Saturday, disavowal of traditional Christian holidays such as Christmas and Easter, adherence to certain dietary restrictions, and belief in faith-healing. As the plaintiff became increasingly indoctrinated into the teachings of the Church, "a definite lack of communication" developed between her and her husband.

The parties' alienation from one another increased when the plaintiff began bringing the children with her to Sabbath services on Saturday. At one point, the plaintiff testified that her husband took the children "screaming from [her] arms" in order to prevent them from attending services. In 1981, the parties' differences reached the breaking point, and the plaintiff filed a libel for divorce based upon irreconcilable differences. The defendant subsequently filed a cross-libel for divorce, also based on no-fault grounds. Custody of their two minor children was, and has remained, a major point of contention.

On January 22, 1981, at a hearing before a Master (Gary R. Cassavechia, Esq.) on the issue of temporary custody, the defendant testified that he opposed the plaintiff having custody of the children because he feared that her newfound religion would have harmful physical and psychological effects upon them. Specifically, he expressed concern that, as his wife's religious zeal grew, she might begin denying the children necessary medical treatment. The defendant later admitted, however, that were it not for his wife's religion, the children would probably be better off under their mother's care. The plaintiff testified that she had never denied her children medical treatment and did not intend to do so if she were awarded custody. She also maintained that the children's best interests required that they be allowed to remain with her because she would have more time to spend with them.

Following the hearing, Attorney Steven G. Shadallah was appointed as guardian ad litem for the children. In his report, he recommended that sole legal custody be awarded to the defendant. He stated:

"It is the opinion of the G.A.L. that though the Plaintiff is characterized as an excellent mother she is very disturbed, confused and upset at this time in her life. Though she is deeply and genuinely concerned about her children, she gives the impression that her new-found religion is her principal concern in her life and this is evident from the fact that she rarely speaks without making a religious reference. The G.A.L. was not so much impressed or influenced by the nature or kind of religion with which the Plaintiff is associated, as he was by the extent of the Plaintiff's involvement with the religion.

The Plaintiff seems to live her life entirely by the dictates of her new religion with no room for independent thought or expression. This is evidenced in part by her refusal to temper any of her religious beliefs for the welfare or benefit of those around her, including her own children.

The intensity with which the Plaintiff follows her religion seems to be affecting the children too or at least the parties' oldest child Tracy. For an 8 year old girl she is highly indoctrinated with admittedly unorthodox religious teachings and at times she does not seem to be concerned with what other children her age might be concerned. Tracy does express the wish to live with her mother, not out of any dislike for her father but because of her mother's ability to spend more time with her which she admits is because she does not work.

It is the opinion of the G.A.L. that the children would be better off in the custody of their father for the time being and if the circumstances of the Plaintiff's life should change they should probably be returned to their mother who, even the Defendant admits, ought to have custody because of her greater ability and time to care for the children."

The master recommended that the defendant's cross-libel for divorce be granted, but that the plaintiff be awarded sole physical and legal custody of the children, notwithstanding the guardian ad litem's recommendation that custody be awarded to the defendant. On July 24, 1981, the Superior Court (Bean, J.) approved the master's recommendations. The divorce decree, however, imposed the following restrictions upon the plaintiff's freedom to raise the children according to the teachings of the World Wide Church of God:

"1) ... [T]hat pending further order of the Court or agreement of the parties the children will continue to receive the medical care, and attention which was customary while the parties were married; that she will keep the Defendant apprised of, and will consult him, with regard to any illness of the children (physical or mental of extended duration (more than two days)) and the treatment to be employed; that she will neither directly or indirectly encourage the children to become members or participants of the World Wide Church of God or to be taught or instructed with regard to its tenets, disciplines or teachings; and that she will not discourage the children, directly, or indirectly, from continuing to practice and/or observe the Methodist religion or the Christian traditions; holidays and beliefs under which they were raised and reared prior to her membership in the World Wide Church of God.

2) That the Defendant be given liberal and reasonable rights of visitation, including without limitation, and by way of a minimum schedule only, every other weekend from 9:00 A.M. Saturday through Sunday at 6:00 P.M.; Saturday on the weekends he does not have full weekend visitation, from 9:00 A.M. through 6:00 P.M.; on Sunday of any weekend he does not have full weekend visitation, for such time as may be reasonably required for the children to participate in Methodist Church services; Christmas Eve, Christmas Day, Easter and alternate remaining holidays during each year; Father's Day; and alternate birthdays of each child."

(Emphasis added.) The above-quoted portion of the divorce decree thus manifested a singular preference for the defendant's religion.

Shortly after the foregoing decree was entered, the defendant filed a motion to modify the decree, requesting that he be granted sole physical and legal custody of the children. The plaintiff responded by filing an objection to the defendant's motion and a request captioned "Motion to Modify Restraints upon Religious Freedom." On June 21, 1982, the Superior Court (Contas, J.), acting upon the recommendations of the same master involved in the initial divorce decree, modified that decree and awarded the parties joint legal custody of the children, with primary physical custody with the plaintiff. Neither party had requested joint legal custody. The court also vacated the above-quoted portions of the decree which referred explicitly to the plaintiff's religion, and altered the defendant's visitation schedule as follows:

"[T]he Defendant is awarded reasonable and liberal physical custodial rights to and with his minor children, including without limitation, and by way of a minimum schedule only every other weekend from 9:00 A.M. Saturday through Sunday at 6:00 P.M., Saturday on the weekends he does not have full weekend visitation, from 9:00 A.M. through 6:00 P.M., Christmas Eve, Christmas Day, Easter and alternate remaining holidays during each year; Father's Day; alternate birthdays of each child; two consecutive weeks during the months of July or August of each year; and one-half of each school vacation during the school year."

(Emphasis added.)

On July 15, 1982, the plaintiff filed a motion for clarification in which she asserted that the visitation schedule, even as modified, "establishe[d] a preference for the defendant's religious practice" by allowing the defendant to spend Christian religious holidays with the children, but denying the plaintiff similar rights with regard to her own religious holidays, and by effectively preventing the plaintiff from ever attending her Church's weekly Saturday services with her children. The court denied the motion...